Walking on Sunshine Laws: How Florida’s Free Press History in the U.S. Supreme Court Undermines Open Government

by Joseph T. Eagleton

Page 22

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” — Thomas Jefferson1

One of the First Amendment’s most powerful values is freedom of the press.2 In the modern 24 hours a day, seven days a week world of instant news, however, freedom of the press is largely taken for granted and has even, perhaps, lost some of its luster. The decline of newspapers,3 the growth of online tabloid journalism,4 and the punditry of a cable news machine convinced that every story has two sides5 have removed the Cronkite-esque mystique that once surrounded the media, making it easier than ever to overlook its role as the linchpin of a democratic society.6

Only 15 percent of people around the globe live in a nation that embraces freedom of the press, meaning that the vast majority of the world has its news filtered, stifled, tainted, propagandized, or controlled entirely.7 The Arab Spring 8 (as the pro-democracy protests in the Middle East and Northern Africa that erupted during 2011 and toppled governments in Tunisia, Egypt, and Libya, have come to be known)is a stark and powerful reminder of what can happen when a country’s citizens are silenced and repressed by secretive and authoritarian government regimes. While these protests have yet to translate officially into greater press freedom in a region dominated by state-sponsored media,9 there is little doubt that freedom of the press is one of the key reforms at the heart of these protests — and for good reason.

Freedom of the press is, as Winston Churchill once asserted, “the unsleeping guardian of every other right that free men prize” and “the most dangerous foe of tyranny.”10 It has been, and continues to be, the best way to expose corruption, educate the public, and hold leaders accountable. Without information, citizens are powerless to impact their government. Without citizens impacting government, power becomes concentrated in an elite few. Without the fear of public outcry, the will of the few trumps the will of the many. And absolute power, it has long been said, corrupts absolutely.11

Freedom of the press is hollow, however, without open government. Transparency, along with public access to records and meetings, is how the press is able to communicate with citizens about the decisions of those in charge. Open government is key to the democratic process because it instills public trust in government conduct while ensuring that those in power are called to account for their actions.

As anyone who watched the legal battle in the aftermath of the 2000 U.S. presidential election play out live on television knows, ballot designing and chad-hanging aside, the state of Florida has one of the most well-established open government traditions among the 50 states. Florida’s constitution contains an express, self-executing provision guaranteeing access to public records and meetings;12 the Florida Supreme Court televises and provides an online archive of its oral arguments dating to October 1997;13 and Florida’s Government-in-the-Sunshine law14 remains one of the broadest in the country. While the state government is perhaps most nationally renowned for its electoral mishaps, it has long been a national leader in fostering open government.15

Yet, despite its tradition of transparency, Florida’s national legacy with respect to freedom of the press is somewhat more mixed. Over the course of the last half-century, there have been several instances in which the U.S. Supreme Court has stepped in to invalidate a Florida policy as contrary to the First Amendment’s free press clause. From the Court’s rebuke of a Florida statute banning publication of rape victims’ names,16 to the Court’s reversal of a contempt citation for editorials critical of the state’s judicial system,17 to the oft-cited “right of reply” ruling,18 Florida and the free press clause have an interesting and often contentious history together.

This article traverses that largely unexplored history through the lens of four U.S. Supreme Court free press cases that originated in Florida, weaving together, along the way, a narrative about the Sunshine State’s role in the development of American free press jurisprudence. It begins by briefly exploring Florida’s history of open government, which sets the stage for an in-depth review of Florida’s impact on the free press clause in the nation’s highest court. After describing the case law, this article highlights the tension between the state’s long-standing practice of fostering open government and its experience with respect to free press cases at the U.S. Supreme Court, ultimately concluding that these cases may serve negatively to impact outsiders’ perceptions of Florida’s state government.

The Sunshine State and Sunshine Laws: Florida and Open Government Florida’s open government laws are widely regarded as some of the broadest and most all-encompassing in the country.19 The state’s attorney general, Pam Bondi, has declared that, “[i]n Florida, transparency is not up to the whim or grace of public officials. Instead, it is an enforceable right.”20 That right is found in an amalgamation of provisions within Florida’s statutes and in its state constitution.

Florida’s first open government law, known as the “Public Records Law,” was passed in 1909,21 designating a state policy generally to keep all government records open for any person to view.22 Pursuant to this enactment, which remains good law today, any public records received by a state agency during the course of its official government business, absent a special exemption by the legislature,23 are presumed to be open for inspection and copying, at any reasonable time, under reasonable conditions, by any person desiring to do so.24 The term “public records” is expansively defined in the statute to include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, and data processing software — regardless of the form, place of storage, or means of transmission.25

In 1967, the Florida Legislature passed the “Government-in-the-Sunshine” law, which reaffirmed the principles of the 1909 Public Records Law and became the nation’s first open meetings law.26 The Sunshine Law is well known to most Floridians, perhaps as a result of its uniquely apropos name, and it remains a benchmark for other states’ open government laws. The law, now codified in F.S. Ch. 286,27 provides that all board and commission meetings at which official acts are undertaken must be publicly open, that reasonable notice of all such meetings must be given, and that minutes of the meetings must be promptly recorded and made available for public inspection.28 The Florida Supreme Court has broadly interpreted the Sunshine Law’s open meetings provision to apply to any gathering of a covered entity — which the court has said includes every board or commission over which the legislature has “dominion or control”29 — “where the members deal with some matter on which foreseeable action will be taken by the board.”30 The Sunshine Law ensures that formal government business is conducted in the open and — coupled with the Public Records Law’s mandate that all official government communications be subject to inspection — ensures that Florida’s state government is accountable to its citizens.31

Florida’s openness is not confined just to these statutory rights, however. In 1992, Florida voters overwhelmingly approved a proposed constitutional amendment guaranteeing a right of access to public records and meetings.32 This provision, now part of Fla. Const. art. I,33 serves as yet another pronouncement of Florida’s commitment to open government, and ensures that the legislative and judicial branches are also subject to transparency standards.34 The constitutional language tracks the Public Records Law with respect to the right of any person to inspect or copy any public record created during the course of official state business, but it goes further in defining the specific entities to which this right of access applies.35 These enumerated entities include all three branches of state government and their affiliated agencies and departments; all counties, municipalities, and districts of the state; and all other officers, boards, and commissions created by law.36 In addition, the provision provides that all meetings of executive branch agencies and of county, municipality, or school district bodies be open and properly advertised to the public.37 Notably, the text of the constitutional public records and meetings section indicates that its requirements are self-executing, which means that the legislature need not pass any laws in order for the constitutional open government guarantees to apply.38

Falling directly in line with this history of transparency is the judicial canon at the heart of Chandler v. Florida, 449 U.S. 560 (1981), a case arising out of Miami Beach that progressed all the way to the U.S. Supreme Court. The case centered around the highly publicized criminal trial of two local police officers who were charged with and convicted of burglarizing a popular Miami Beach restaurant.39 The key witness for the prosecution was an amateur radio operator who had, by coincidence, overheard and taped walkie-talkie conversations between the officers during the course of the crime.40 As a result of the restaurant’s notoriety, the defendants’ positions as law enforcement officers, and the added intrigue of the recordings, the case justly attracted meaningful local media attention.41

Pursuant to a newly issued Florida Supreme Court canon at the time,42 the trial judge allowed a television camera to film part of the proceedings, despite the defendants’ objections.43 The camera recorded the radio operator’s testimony, as well as closing arguments, and local television broadcast a total of two minutes and 55 seconds of the trial — all of which represented the prosecution’s case.44 The defendants filed an appeal for a new trial, contending that the television coverage prejudiced their case and deprived them of their Sixth and 14th Amendment rights to a fair and impartial trial.45 The District Court of Appeal affirmed the defendants’ convictions, and the Florida Supreme Court denied review.46 The U.S. Supreme Court subsequently, and somewhat surprisingly, granted certiorari to review the intermediate state appellate court’s decision.

Chief Justice Burger, speaking for six justices on a court unanimous in affirming,47 explained that a per se bar on televising court proceedings, an argument advanced by the defendants, would infringe on the states’ ability, pursuant to core federalism values, to serve as laboratories of experimentation with respect to novel social developments, such as evolving technology, that can more easily educate the public about the operations of important public institutions like courts.48 The Chief Justice further reasoned that the risk of juror prejudice in some cases, an outcome the defendants made no showing of in Chandler,49 cannot justify a full-scale repudiation of press coverage of cases when the public interest, as measured by the publicity surrounding the trial, happens to be high.50 The proper constitutional balance, according to the Court, is to allow defendants to present evidence of prejudice as a consequence of media coverage in their individual cases, rather than to pronounce a per se rule that publicity, in and of itself, violates a defendant’s due process rights.51

Chandler symbolizes a crowning achievement for Florida’s free press history. The decision reflects the significance of the values underlying open government — values that courts, to this day, continue to emphasize and profess. In March 2011, for example, a federal court in Texas rejected a challenge to that state’s public meetings law, holding that the state’s interest in open meetings — providing transparency to government decision making, discouraging government fraud and corruption, and promoting citizen trust in government operations — were compelling,52 and that government openness is “a First Amendment virtue, not a First Amendment violation.”53 For Florida, the first state to adopt an open meetings law and the state to which many other states look when crafting their own open government statutes, the Texas case validates both the important principles behind open government laws and the influential role Florida has had in shaping their nationwide development. From the Public Records and Sunshine Laws to the public records and meetings constitutional provision and the pioneering judicial canon in Chandler, Florida has long been a leader in ensuring public access to government. This tradition of transparency, however, represents just one side of the story.

Stormy Weather: Florida Free Press Cases in the U.S. Supreme Court The U.S. Supreme Court, as it should be, has over time been protective of freedom of the press.54 The Court has declared prior restraints on speech are presumptively unconstitutional,55 even when the government’s interests in preventing publication are particularly strong.56 The Court has also invalidated special taxes on newspapers as violative of the free press clause since such taxes have the effect of stifling information flow and impeding public knowledge about the operations of government.57 Furthermore, the Court has established a particularly high bar for defamation and libel suits against press entities for their reports and criticism of public officials,58 citing the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”59

Despite the Court’s strong rhetoric throughout the years, states sometimes attempt to limit the scope of freedom of the press by passing laws that inhibit access or by imposing some other restriction on press conduct, thereby potentially closing the doors to government. The First Amendment, through the free press clause, generally prohibits this kind of behavior, thus fostering open government by preventing states from hindering press — and therefore public — access in this way.

Given Florida’s open government tradition, it would be logical to assume that conflict on this front occurs far from the Florida shoreline. Yet, Florida and freedom of the press have had a tumultuous relationship in the U.S. Supreme Court, and the state’s constitutional history is far more disharmonious than its practice of open government would suggest.

• Pennekamp v. Florida —Florida’s checkered free press history in the nation’s highest court began in 1946 with Pennekamp v. Florida, 328 U.S. 331 (1946). The case concerned two Miami Herald editorials and a cartoon critical of the state’s judicial system.60 The associate editor of the paper, John D. Pennekamp, and its corporate publisher, the Miami Herald Publishing Company, were held in contempt of the Circuit Court of Dade County and were fined $250 and $1,000, respectively,61 for undermining the integrity of, and compromising public trust in, the court and its individual judges.62 Pennekamp and the newspaper challenged their contempt citations, arguing that the published materials were valid commentary and were protected by the First Amendment,63 but the Florida Supreme Court affirmed, stating that, while “freedom to publish one’s views is a principle of universal practice,” nevertheless “[c]ourts cannot function in a free country when the atmosphere is charged with the effusions of a press designed to poison the mind of the public against the presiding judges ….”64 The U.S. Supreme Court subsequently granted certiorari and reversed.65

Justice Reed’s majority opinion came down hard on Florida, applying the clear and present danger test to find that the contempt citations were inappropriately issued.66 He explained that, while judges retain some degree of latitude to restrict actions that may prejudice the administration of justice in cases before them, the ability of the press to discuss and critique the judicial system should rarely be impugned.67 In other words, unless there is substantial evidence to suggest the existence in press commentary of a clear and present danger to the orderly administration of justice, a court is not able, consistent with the First Amendment, to punish the media for its criticisms.68

• Miami Herald Publishing Company v. Tornillo —Florida and freedom of the press came into conflict again in the 1974 U.S. Supreme Court case of Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974). Pat Tornillo, a well-known and controversial south Florida teachers’ union leader, was a candidate for state house in an October 1972 run-off election.69 The Miami Herald, not a fan of Tornillo’s, published two editorials critical of Tornillo and his bid for public office.70 Pursuant to a Florida “right of reply” statute then in existence,71 Tornillo requested, as the law provided, equivalent space in the paper to respond to the Herald’s disparaging commentary.72 The paper refused, and Tornillo brought suit for declaratory and injunctive relief, as well as damages of more than $5,000.73 The circuit court, agreeing with the argument brought forth by the paper, found the statute an unconstitutional violation of freedom of the press.74 The Florida Supreme Court, exercising its mandatory jurisdiction over cases when a lower court declares a statute invalid,75 reversed, stating that the “right of reply” statute furthered, rather than restricted, free speech and public access to information.76

The U.S. Supreme Court unanimously reversed the Florida Supreme Court’s decision and struck down the Florida statute as an unconstitutional infringement on freedom of the press.77 In essence, the majority opinion, authored by Chief Justice Burger, found that the government telling a newspaper what it must print invades editorial discretion78 and has a chilling effect on speech.79 Since newspapers are limited in the amount of space they possess, and because, if the statute were upheld, they would likely want to avoid the steep penalties associated with violating the law, the papers would also be likely, according to the Court, to choose to simply avoid publishing controversial commentary about elections altogether.80 Such a result would undermine one of the First Amendment’s key purposes, which is “‘to protect the free discussion of governmental affairs’”81 and, coupled with the intrusion on the paper’s free exercise of editorial control, would violate the essential value at the heart of a free press — that it is necessary to effectuating democratic governance.82 Accordingly, as it did in Pennekamp, the Court in Tornillo found that Florida had offended the free press clause.

• Florida Star v. B.J.F. — In 1989, the U.S. Supreme Court had another opportunity to consider the free press implications of a Florida statute. Florida Star v. B.J.F., 491 U.S. 524 (1989), originating out of Jacksonville, was a case in which the Court reviewed the constitutionality of a Florida law banning publication of any identifying information pertaining to victims of sexual abuse.83 Ultimately, the Court concluded that Florida once again was on the wrong side of the First Amendment.84

B.J.F. was the victim of a violent robbery and sexual assault in Duval County.85 The county sheriff’s department formulated a report of the crime based on the information B.J.F. provided and placed the report in the pressroom at the department’s office, which meant that the report’s contents, including B.J.F.’s full name, were available for public viewing.86 An employee of The Florida Star, a weekly Jacksonville paper with a circulation of about 18,000 at the time, copied the information contained in B.J.F.’s police report, and the newspaper printed a one-paragraph article about the crime in its regular “Police Reports” section.87 Publishing B.J.F.’s full name broke both the Star’s internal policy and the Florida law banning the disclosure of a sexual assault victim’s identifying information.88 As a result of her name’s publication, B.J.F. and her family suffered emotional trauma, intimidation, and significant changes in their daily lives.89

In September 1984, just shy of a year from the reported assault, B.J.F. filed a state law civil suit against the Duval County Sheriff’s Department and The Florida Star, alleging that both entities negligently violated the statute at issue.90 The sheriff’s department agreed to a $2,500 settlement, while The Florida Star argued its disclosure of B.J.F.’s full name was inadvertent and that, in any event, the law was unconstitutional.91 The trial judge granted B.J.F.’s motion for a directed verdict on the issue of the paper’s negligence, and the jury awarded B.J.F. $100,000 in damages.92 The First District Court of Appeal affirmed and the Florida Supreme Court declined to exercise its permissive jurisdiction to review the case.93 After establishing it had probable jurisdiction, the U.S. Supreme Court granted certiorari.94

Speaking for a five-person majority, Justice Marshall explained that, while the First Amendment perhaps does not bar punishment for all truthful publications when privacy rights or national security concerns are implicated,95 it does prohibit a state from holding the press liable for publishing information lawfully obtained96 and publicly available.97 Justice Marshall further pointed out that The Florida Star’s article was related to a matter of great public importance — a violent crime — and that the Florida Legislature’s interests in protecting sexual abuse victims, although meaningful, could not justify the imposition of a fine on a newspaper’s accurate reporting of publicly available and socially material information.98 Therefore, the Court held that Florida’s statute could not be used, consistent with the First Amendment, to impose liability on the press in this instance.99

Sunshine and Rain: Reconciling Florida’s Free Press History Florida’s constitutional free press history is perplexing. For a state with a long and proud tradition of transparency, with some of the most media-friendly public access laws in the country,100 Florida has seen its fair share of rebukes from the nation’s high court on free press issues. With the exception of Chandler, three of the four biggest free press cases the U.S. Supreme Court has decided from Florida have gone against the state. In two of the three, the Court was unanimous in its disapproval of Florida’s policy, finding in both Pennekamp and Tornillo that Florida had clearly stepped on the toes of the press freedom guaranteed by the First Amendment.101

Rationalizing the discrepancy between Florida’s open government laws and the statutes at issue in Tornillo and Florida Star is possible, though far from convincing. In Tornillo, for example, the “right of reply” statute arguably fostered more speech, rather than less, by allowing candidates for public office to respond to critical allegations made against them. In this way, Florida’s law could have been seen as trying to ensure that voters were privy to greater knowledge about those seeking elected positions, which, in turn, would have benefited the democratic process. Yet, it is hard to argue with the Supreme Court’s decision that the statute also had the effect of stifling press commentary. Indeed, government conduct that compels the press to act in a certain way and that undermines editorial control over the content of the news is the very kind of evil the First Amendment is designed to prevent.

The statute at the center of the controversy in Florida Star is somewhat more defensible. Not only did three justices find that Florida had struck the right balance between press and privacy interests in the case,102 but even Justice Marshall’s majority opinion acknowledged the validity of the state’s interest in protecting the anonymity of sexual abuse victims, both for the victims’ own physical and emotional safety as well as the state’s goal of incentivizing victims to report such disturbing crimes.103 Again, though, Florida’s history with respect to open records would have suggested that the state’s analysis of the delicate competing values in such a context would have tipped the scales in favor of freedom of the press.

Pennekamp is perhaps the most egregious of the free press cases. While it may be somewhat hard to imagine a court today censuring the media for criticism that seems tame compared to the kind of commentary that is now routine online, the conduct of the judges in the case represented both an abuse of power and a constraint on the core liberty enshrined in the First Amendment. For Florida to be responsible for sanctioning the press because of the content of its reporting flies in the face of not only open government, but democratic government as well.

And yet, there is Chandler. That Florida would be at the forefront of televising criminal trials makes perfect sense in light of the state’s highly regarded open meetings laws, and the Supreme Court’s emphatic support for Florida’s program is a feather in the state’s transparency cap. But Chandler is not what stands out from Florida’s free press history. Instead, it is the reversals of Florida decisions as contrary to First Amendment values that prove more memorable.

Ultimately, Florida’s constitutional failures on free press issues serve to tarnish its proud legacy of open government and may even diminish the state’s standing among outsiders.104 Despite its dedication to public records, despite its groundbreaking Sunshine Law, despite its constitutional public right of access to information, Florida’s less than stellar free press history in the U.S. Supreme Court is a black mark on the state’s open government tradition. Sunshine, it turns out, is not abundant everywhere in Florida.

6 This is not meant to suggest that journalism was necessarily better when network news and paper newspapers dominated information flow. Indeed, easier access to news, more varied sources, and immediate commentary — all of which are a product of current technology and the social media revolution — are powerful weapons for journalists, bloggers, and citizens alike. But it is the very ease and fluidity with which news is now disseminated and consumed that produces a culture in which the availability of that news itself is often taken for granted.

47 Justices Stewart and White each filed separate opinions, but both concurred in the result. Justice Stevens did not participate in the case. See id. at 583-86.

48See id. at 579.

49Id. at 582.

50Id. at 574-75.

51Id. at 575.

52See Asgeirsson v. Abbott, 773 F. Supp. 2d 684, 704 (W.D. Tex. 2011). The case was brought by several local city council members who were allegedly involved in an email exchange that led to criminal indictments of two other council members for violating the Texas Open Meetings Act. Id. at 688. The complaint alleged, inter alia, that the law infringed on the elected officials’ free speech rights by prohibiting certain kinds of communication and was, therefore, an improper content-based restriction on speech. See id. at 688-89, 707.

54 As with any generalization of this sort, there are bound to be exceptions. For two that tend to temper the idea that the Supreme Court is always favorable to freedom of the press, seeBranzburg v. Hayes, 408 U.S. 665 (1972) (holding that reporters cannot refuse to testify before a grand jury in criminal proceedings), and Houchins v. KQED, Inc., 438 U.S. 1 (1978) (holding that the press does not enjoy a right of access to report on prison conditions).

55See Near v. State of Minn. ex rel. Olson, 283 U.S. 697, 721 (1931) (holding that a Minnesota statute allowing for the abatement of any “‘malicious, scandalous and defamatory newspaper, magazine or other periodical,’” id. at 701-02, was violative of the First Amendment and not “consistent with the conception of the liberty of the press as historically conceived and guaranteed.”). Id. at 713.

56See N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (holding that the federal government could not prevent publication of the “Pentagon Papers” based on national security concerns).

57See Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936) (“The tax…is bad because…it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.”); Minn. Star & Trib. Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 583 (1983) (“There is substantial evidence that differential taxation of the press would have troubled the Framers of the First Amendment.”).

58See N.Y. Times v. Sullivan, 376 U.S. 254, 279-80 (1964) (“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”).

86Id. (“The Department does not restrict access either to the pressroom or to the reports made available therein.”).

87Id. The Florida Star turned 60 in April 2011 and describes itself as “Northeast Florida’s oldest African American-owned newspaper with the most news and the largest circulation.” The Florida Star, About, http://www.thefloridastar.com/?page_id=444.

88Florida Star, 491 U.S.at 528.

89Id. (indicating that B.J.F.’s co-workers and acquaintances told her about the article, that her mother received threatening phone calls, and that B.J.F. was forced to move, change her phone number, and seek mental health counseling).

90Id.

91Id.

92Id. at 528-29.

93Id. at 529; see also Fla. Const. art. V, §3(b)(3).

94Florida Star, 491 U.S. at 529.

95Id. at 532.

96Id. at 534.

97Id. at 535 (“[W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.”).

101 While both cases were unanimous in result, each had a number of separate opinions. Justices Frankfurter, Murphy, and Rutledge wrote special concurrences in Pennekamp, while Justice Jackson did not participate in the case. In Tornillo, Justice Brennan and Justice White each wrote individual concurring opinions.